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Wednesday, February 12, 2003 - Page updated at 12:00 AM

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Guest columnists

Makah whale hunts illegal

IN May 1999, a young female whale slowly died off the Washington coast after being shot three times — once with a harpoon and twice with a high-powered .50-caliber rifle. Although her species, the Eastern Pacific gray whale, was removed from the endangered list only nine years ago, the Makah tribe had sought for most of that time to resume hunting these majestic mammals.

But in December, the U.S. Court of Appeals ruled that the whale hunt was flagrantly illegal, and could have devastating impacts on the resident whales of Puget Sound, as well as set the stage for additional whale killing around the world.

In response to a lawsuit filed by The Fund for Animals, The Humane Society of the United States, and other plaintiffs, the court determined that the federal government violated environmental laws when it granted a quota for the Makah to kill up to five whales per year.

While the Makah and their attorneys have stated in the media that this ruling will have damaging implications for Native American treaty rights across the board, this is simply not the case.

The Marine Mammal Protection Act, passed by Congress in 1972, is a powerful environmental law that prohibits the hunting of whales. The law included a special provision allowing subsistence hunts for Native Alaskans, due to their continuing reliance on marine mammal hunting in sub-Arctic and Arctic villages. Other Native hunts such as the Makah's, culturally based rather than for subsistence, were given no such provision.

The Makah have always maintained that the 1855 Treaty of Neah Bay expressly preserves their right to whale, but the treaty did so "in common with all citizens of the United States." The appeals court ruled, therefore, that the tribe "has no unrestricted right to pursue whaling in face of the MMPA," but rather that "the MMPA's application is necessary to effectuate the conservation purpose of the statute" and "is consistent with the language of the Neah Bay Treaty."

In other words, the ruling does not negate treaty rights, but rather upholds the longstanding precedent that treaty rights can be restricted for conservation purposes. If the tribe wants to hunt whales, it must first apply for and receive a waiver under the MMPA.

The government also violated the National Environmental Policy Act by failing — twice — to analyze adequately the environmental impacts of the whale hunt.

Its first environmental assessment was prepared after the government had already decided to grant a whale-hunting quota to the Makah, leading the court of appeals in June 2000 to call this "a classic Wonderland case of first-the-verdict, then-the-trial" and to order the government to conduct a new study prior to making a decision.

The revised assessment was even worse because it expanded the hunt, allowing the Makah to target a small group of 30 to 50 resident whales that do not migrate to polar regions but rather remain in the Puget Sound area throughout the summer — many of which are known to local whale-watching companies. The court in December noted the scientific concerns about this small group of animals and their ecological importance to the Puget Sound area, and halted the hunt until the government conducts a far more thorough analysis.

Moreover, the Makah went more than 70 years without hunting whales, and do not have a true subsistence need to hunt these animals. The International Whaling Commission, which bans commercial whaling but allows some Native subsistence hunts, has a very strict definition of aboriginal subsistence whaling — and has never recognized the Makah's subsistence-whaling claim.

The commission does recognize the claim of the Siberian natives of Chukotka, and therefore has set a quota for hunting gray whales — but the U.S. government's unilateral decision to allow the Makah to hunt these whales has remained controversial among commission members.

Americans decided long ago that hunting whales for commercial, recreational and other non-subsistence purposes is simply unacceptable. Allowing the Makah tribe to hunt even a small number of whales for "cultural" reasons sets a dangerous precedent for allowing other "cultural" whale hunts around the world. Japanese, Norwegian and some Native hunters are just waiting for the chance to reopen commercial whaling under the guise of culture, and the Japanese have already pointed to the Makah hunt as illustrative of American duplicity on this issue.

We must oppose all non-subsistence whale hunting, regardless of whether the whale hunters are European, Asian, Native American or any other ethnicity.

We respect the culture and treaty rights of the Makah, but insist that our federal government must respect domestic environmental laws and international treaty obligations to protect whales. Our federal agencies should stop wasting tax dollars to promote whale killing in the U.S., and the Makah — many of whom do not support whale hunting — should look toward whale watching and other humane opportunities to benefit from the presence of whales in Puget Sound.

Michael Markarian is the president of The Fund for Animals, which is based in New York City, and Naomi A. Rose is the marine mammal scientist for The Humane Society of the United States, based in Washington, D.C.

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